Recording Industry vs The People: Louisiana Judge says no to RIAA's request for default judgment without a hearing

Thursday, January 31, 2008

Louisiana Judge says no to RIAA's request for default judgment without a hearing

In a Lafayette, Louisiana, case, Warner v. Lewis, the defendant defaulted.

The Judge, however, has refused to rubber stamp the RIAA's request for a default judgment, and has instead ordered the RIAA to prove it is entitled to a judgment, at an evidentiary hearing scheduled for February 14th.

District Judge Tucker L. Melancon denied the RIAA's ex parte, unopposed, motion to cancel the hearing.

[Ed. Note. It is the norm, in tort -- as opposed to contract -- cases, to require such an evidentiary hearing before awarding a judgment. Copyright infringement is a tort. The RIAA, however, has somehow been able to convince most judges to dispense with such a hearing, and to just rubber stamp the RIAA's request for a default judgment based on written papers, thus saving the RIAA thousands of dollars in each default judgment case. Judge Melancon, in declining to follow the RIAA's procedure, is following correct procedure.]

December 14, 2007, Order Setting February 14, 2008, default judgment hearing*
RIAA's January 25, 2008, Ex Parte Motion to Vacate Hearing*
January 28, 2008, Order Denying RIAA Motion*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

7 comments:

Anonymous said...: If these torts have been filed and rubberstamped without the proper procedure, couldn't the judgment be overturned afterwards due to failure to follow procedure, or failure to present evidence?

I'd think that the resulting judgment would be considered to be given completely on hearsay, given that anyone can print out a list of IP addresses and say that they're identifying someone.; January 31, 2008 at 5:53:00 PM EST
Anonymous said...: Upon closer inspection of their motion for waive the the evidentiary hearing, they apparently dropped the telephone number analogy for a postal address analogy. This is just as shaky as the phone theory, since multiple people can live at an address, or someone could have their mail routed to a different address than their own.

ZH
(forgot to tag the first post); January 31, 2008 at 6:21:00 PM EST
Anonymous said...: [Ed. Note. It is the norm, in tort -- as opposed to contract -- cases, to require such an evidentiary hearing before awarding a judgment. Copyright infringement is a tort. The RIAA, however, has somehow been able to convince most judges to dispense with such a hearing, and to just rubber stamp the RIAA's request for a default judgment

Ray, did you by chance go to a different law school, and face a different bar examination, than all of these other judges – excluding, of course, the judge in the instant case here?

This case seems like an excellent for an amicus curie to ensure that the judge is fully aware of all the issues relevant to the incomplete, illegal, illogical, and plain outright faulty "evidence" that the RIAA routinely presents. Starting with the very first line of the RIAA motion that states in Background: Users of peer-to-peer networks who distribute files over a computer network can be identified by using Internet Protocol ("IP") addresses because of the unique IP address of the computer distributing the files…Of course, actual "users" can never be identified in this manner.

And from the SafeNet declarations you also posted today, in the instant case motion the RIAA contends: When available, MediaSentry invokes this feature of a peer-to-peer program, just as any other user could do… SafeNet has already declared that the programs and methods they use are a result of tens of thousands of man-hours over five years of effort to develop. Doesn't the RIAA even read the declarations of their investigators?

XK-E; January 31, 2008 at 6:35:00 PM EST
raybeckerman said...: Dear Anonymous XK-E. Would you do me a favor and put the MediaSentry comment in the MediaSentry post as well, because I think our comment section is about to be visited by the Slashdot community.
Thanks.; January 31, 2008 at 7:32:00 PM EST
Ron Coleman said...: I have obtained default judgments for trademark infringement and copyright infringements in various different federal courts. There is no such "norm." Indeed in cases where the defendant does not appear, it is common for default judgments and inquests to be made entirely on the papers. Other judges want to see a face in court. There is no legal rule nor any particular reason why one approach is better than the other in all cases.; February 3, 2008 at 2:53:00 PM EST
raybeckerman said...: Dear Ronald, In my view it is an error for a judge to grant a default judgment in a tort case. There is no legal authority anywhere for doing it.

I can't expect you to agree with me, since your clients appear to have benefitted from the same error.

Nor can I expect you to admit that it is unusual.

Neither is there any legal authority for treating a copyright infringement or trademark infringement case any different than any other tort case.; February 3, 2008 at 10:36:00 PM EST
raybeckerman said...: Dear Ronald, if you have any authority for granting written default judgments in tort cases, and for waiving the plaintiffs' obligation to produce competent evidence to support his right to relief, I would be curious to see it. If you have authority in the statutes or the Federal Rules, I'll eat my words.; February 3, 2008 at 10:38:00 PM EST

Post a Comment

JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove